MILLS, Commissioner.--Petitioner appeals the termination of his services by the Board of Education of the Manhasset Union Free School District ("respondent board" or "board"). The appeal must be sustained in part.

In 1991, petitioner began employment with the Manhasset Union Free School District (the “district”) in a full-time position as a teacher of English as a Second Language (hereinafter "ESL") assigned to the district's middle/high school. Petitioner was granted tenure in the ESL tenure area in 1993.

On April 11, 1997, the district reduced petitioner's position to a .4 part-time ESL teaching position, effective July 1, 1997. Petitioner accepted the reduction to a part-time position and worked for three weeks in September 1997. By letter dated October 1, 1997, the district's Executive Director of Personnel advised petitioner that his position was abolished effective September 30, 1997, due to decreased enrollment, and petitioner was placed on a preferred eligible list (hereinafter, "PEL") for seven years.

By letter dated June 15, 1998, the district offered petitioner a part-time ESL teaching position in the middle/high school for the 1998-1999 school year, which petitioner accepted. Petitioner continued to serve in a part-time ESL teaching position for seven school years, from 1998-1999 through 2004-2005. Prior to the 2004-2005 school year, by letter dated June 10, 2004, the district’s Assistant Superintendent for Personnel offered petitioner a full-time ESL teaching position in a district elementary school for 2004-2005. The letter advised petitioner that refusal of the offer would terminate his status on the preferred eligible recall list as an excessed teacher.

Petitioner contacted the Assistant Superintendent for Personnel to ask about his recall rights if he refused to take the full-time ESL position in the elementary school. In a June 11, 2004 email, the Assistant Superintendent for Personnel advised petitioner, "You come off of the preferred eligibility list September, 2004. If you [sic] current position is then abolished than [sic] you would be placed back on the preferred eligibility list for another 7 years." Petitioner did not accept the full-time ESL teaching position in the elementary school and instead elected for undisclosed personal reasons to continue his part-time ESL teaching position in the middle/senior high school, and worked in that position during the 2004-2005 school year.[1]

By letter dated June 15, 2005, the Assistant Superintendent for Personnel advised petitioner:

At a regular meeting of the Board of Education held on June 14, 2005, the Board acted on the completion of your assignment as a part-time (.6) ESL teacher assigned to the Secondary School effective June 30, 2005. The District will not be reappointing you for the 2005-2006 school year.

In June 2005, the district advertised the availability of a part-time ESL teaching position in its secondary schools in the New York Times classified section, and posted the position on the district's website. On August 4, 2005, the district appointed respondent Fishlow to the advertised part-time (.4) ESL teaching position.

Petitioner claims that respondent board violated his tenure rights. He claims that as a tenured teacher with the district, he cannot be legally terminated from his position unless the district files charges under §3020-a of the Education Law. Petitioner requests an order to annul his termination and restore him to the tenured position that he held at the conclusion of the 2004-2005 school year. Petitioner's request for interim relief to reinstate him to this position was denied on September 15, 2005.

Respondent board claims that petitioner's rights under the preferred eligible list expired in seven years as of October 1, 2004 and that it complied with its legal obligations in reference to his rights under this list. Respondent board further maintains that petitioner had not acquired tenure in the part-time position, that petitioner was not terminated from a teaching position but was simply not offered a part-time position for the 2005-2006 school year because he no longer had preferred eligibility rights. In addition, respondent board claims that the appeal should be dismissed because petitioner failed to join a necessary party.

I will first address several procedural issues. In the caption of his petition, petitioner named the district and the interim superintendent of schools. It appears from the petition, that relief is not sought with respect to the interim superintendent of schools. In any event, to the extent petitioner seeks relief against the interim superintendent, the appeal must be dismissed for petitioner's failure to clearly name such individual as a respondent in the caption of the petition and personally serve the petition upon this individual (Appeal of Goldin, et al., 40 Ed Dept Rep 639, Decision No. 14,573; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369; Appeal of Lawson, 38 id. 713, Decision No. 14,124).

Respondent board claims that petitioner failed to join Stacy Fishlow as a necessary party in this appeal. The board states that at the time of commencement of this appeal, a part-time (.4) ESL teaching position was vacant and that on August 4, 2005, Ms. Fishlow was appointed to the position. Pursuant to §275.8(a) of the Commissioner’s regulations, I ordered petitioner to join Ms. Fishlow as a respondent. After I ordered joinder, respondent board indicated that Ms. Fishlow ceased employment with the district in November 2005. Ms. Fishlow has not submitted answering papers in this appeal. Respondent board does not name any other individual as a necessary party in this appeal, but continues to maintain that petitioner has failed to join necessary parties.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).

When petitioner commenced this appeal, respondent board had not as yet hired Ms. Fishlow, so it would have been impossible for petitioner to have named her as a respondent in the caption of his petition. Petitioner joined Ms. Fishlow when ordered. However, Ms. Fishlow is no longer employed by the district, and she has not answered in this matter. The district has not provided any evidence to support the joinder of other necessary parties. The burden is on respondent board to establish its affirmative defense (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636). Respondent board has not carried this burden, and I will not dismiss this appeal for failure to join necessary parties.

On October 5, 2006, petitioner sent a letter to the Commissioner as an additional submission in this matter, without leave and without proof of service on respondents as required by §§276.5 and 275.9 of the Commissioner's regulations. Therefore, I have not considered this submission.

As required by Education Law §3013, when petitioner's position was abolished in 1997, he was placed on a preferred eligible list of candidates for appointment to a vacancy in a similar position for seven years. The courts have held that a tenured teacher whose full-time position is abolished is entitled to appointment to a similar part-time position (seeMatter of Avila v. Bd. of Educ. of the North Babylon UFSD, et al., 240 AD2d 661, citing Matter of Zurlo v. Ambach, et al., 53 NY2d 1035; Matter of Abrams v. Ambach, et al., 43 AD2d 883; Matter of Siniapkin v. Nyquist, et al., 68 Misc 2d 214), and acceptance of such a part-time position at the request of the school district does not diminish a teacher's tenure or seniority rights (Matter of Avila v. Bd. of Educ. of the North Babylon UFSD, et al., 240 AD2d 661; Matter of Matter of Bellarosa, 20 Ed Dept Rep 252, Decision No. 10,397; Matter of Oursler, 15 id. 258, Decision No. 9,158).

Petitioner accepted the part-time ESL teaching position at the request of the district, while on the preferred eligible list. His tenure and seniority rights thus continued while in the part-time position.

Respondent board claims that petitioner's refusal of a full-time position while on the preferred eligible list made his employment in the part-time position voluntary, and as a result he should not have the benefits of tenure. Respondent board does not offer any legal authority for this proposition, nor has respondent set forth any rational basis for terminating a teacher's tenure rights solely on the basis of his or her voluntary part-time employment.

In addition, I do not find that petitioner waived his tenure rights by declining the full-time position. The courts have held that a rejection of an offer of employment to a teacher on a preferred eligible list does not result in an automatic waiver of preferred eligibility rights (Matter of Lewis v. Cleveland Hill UFSD, 119 AD2d 263). Waiver of a teacher's tenure rights must be knowingly and freely given (Matter of Gould v. Bd. of Educ. of the Sewanhaka CHSD, et al., 81 NY2d 446; Matter of Abramovich v. Bd. of Educ. of the Three Villages CSD No. 1, 46 NY2d 450). I do not find that petitioner's refusal of the full-time position acted as a voluntary waiver of his tenure rights, notwithstanding the statement by the Assistant Superintendent for Personnel in her June 10, 2004 letter offering the full-time position that refusal of the position would terminate petitioner's preferred eligibility recall rights. In fact, the expiration of petitioner's seven-year preferred eligibility period would not occur until October 1, 2004, and petitioner would have been eligible for a new preferred eligibility period if his part-time position were abolished (seeMatter of Avila v. Bd. of Educ. of the North Babylon UFSD, et al., 240 AD2d 661). Further, petitioner specifically inquired about his recall rights prior to declining the full-time position in June 2004, and he was assured by the district's Assistant Superintendent for Personnel that if the part-time position were abolished he would have a right to a new seven-year preferred eligibility period. This is not the action of an individual seeking to waive his tenure rights. Therefore, on the record before me I cannot conclude that petitioner's conduct amounted to a waiver of his tenure rights.

In the absence of a waiver, I find that petitioner was a tenured teacher at the time of his termination from employment. A tenured teacher has a protected property interest in his position and a right to retain it subject to being discharged for cause in accordance with the provisions of Education Law §3020-a (Education Law §3020; Matter of Gould v. Bd. of Educ. of the Sewanhaka CHSD, et al., 81 NY2d 446). Petitioner was not discharged for cause, and respondent board did not follow the due process procedures for disciplining a tenured teacher prescribed in Education Law §3020-a. Thus, I find that the district violated petitioner's tenure rights.

Accordingly, petitioner's termination must be annulled, and petitioner must be reinstated to a teaching position consistent with his rights as a tenured teacher with back pay and benefits.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the action of respondent Board of Education of the Manhasset Union Free School District in terminating petitioner's services, be and the same hereby is, annulled; and

IT IS FURTHER ORDERED that respondent Board of Education of the Manhasset Union Free School District reinstate petitioner to a teaching position consistent with his rights as a tenured teacher in accordance with this decision, with back pay and benefits as of July 1, 2005, less any compensation he may have earned in the interim.

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[1] Respondent board also contends that petitioner was previously offered a full-time ESL teaching position in 2001. Petitioner denies that he was offered a full-time ESL teaching position in 2001. I find that there is inadequate evidence in the record to substantiate the district's claim that petitioner was offered a full-time position in 2001.